The Lawletter Vol 41 No 8
In United States v. Lambis, No. 15CR734, 2016 WL 3870940 (S.D.N.Y. July 12, 2016), a federal court, apparently for the first time, suppressed evidence obtained as the result of the warrantless use of a cell-site simulator to locate a target's cell phone. The court explained that a cell-site simulator—sometimes referred to as a "StingRay," "Hailstorm," or "TriggerFish"—is a device that locates cell phones by mimicking the service provider's cell tower (or "cell-site") and forcing cell phones to transmit "pings" to the simulator. The device then calculates the strength of the "pings" until the target phone is pinpointed.
The court's holding relied mainly on Kyllo v. United States, 533 U.S. 27 (2001), which held that a Fourth Amendment search occurred when government agents used a thermal-imaging device to detect infrared radiation emanating from a home. In Kyllo, the Supreme Court reasoned that "[w]here . . . the Government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a search warrant." Id. at 40.
Relying on Kyllo, the District Court for the Southern District of New York held that "the [Drug Enforcement Agency]'s use of the cell-site simulator to locate Lambis's apartment was an unreasonable search because the 'pings' from Lambis's cell phone to the nearest cell site were not readily available 'to anyone who wanted to look' without the use of a cell-site simulator." Lambis, 2016 WL 3870940, at *2. Further, the use by the Drug Enforcement Agency of the cell-site simulator revealed "'details of the home that would previously have been unknowable without physical intrusion,' . . . . namely, that the target cell phone was located within Lambis's apartment." Id. Moreover, "the cell-site simulator is not a device 'in general public use.'" Id. Accordingly, Lambis held that the "use of a cell-site simulator constitutes a Fourth Amendment search within the contemplation of Kyllo." Id. at *3. The court observed that "[p]erhaps recognizing this, the Department of Justice changed its internal policies and now requires government agents to obtain a warrant before using a cell-site simulator." Id. A Maryland court has also recently held that the use of cell-site simulators constitutes a search. See, e.g., State v. Andrews, 227 Md. App. 350, 134 A.3d 324 (2016).